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O R D E R
O R D E R
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY FEURTADO, a/k/a Tony
No. 97-4008
Feurtado, a/k/a Anthony Paul, a/k/a
Anthony Greene, a/k/a Anthony
Lamar Brown, a/k/a Ginzo, a/k/a
Gap, a/k/a Pretty Tony,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4582
No. 97-4585
I.
Defendants first contend that the district court erred when it dismissed the initial indictment against them without prejudice instead
of with prejudice as they had requested. On October 18, 1995, a Federal Grand Jury in Columbia, South Carolina, initially indicted defendants on charges related to a substantial drug organization. In so
doing it heard the testimony of South Carolina Law Enforcement
Division Agent, Charles McNair. The argument goes that, in the
course of his Grand Jury testimony, Agent McNair overstepped his
bounds when he connected defendants to a series of New York homicides, including the killing of a police officer, unrelated to the charges
for which they were being indicted.
Defendants initially moved that the indictment be dismissed due to
prosecutorial misconduct. The motion, of course, implied dismissal
with prejudice. Attached to that motion was an affidavit by the lawyer
who represented one individual actually convicted for one of the murders in which he stated that "[a]t no time was a person named
Anthony Feurtado ever mentioned as being involved in the murder or
as a coconspirator to its commission." A hearing on the matter was
held on March 27, 1996, at which Agent McNair testified that while
he based his testimony regarding the connection between the Feurtado
drug organization and the murder of Officer Byrnes on a conversation
with a New York City police detective, he later learned that there was
in fact no connection between the two. The district court decided that
"the only misconduct [attributable to the government] . . . was unintentional misconduct."2 Accordingly, the district court dismissed the
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2 Defendants contend that this finding of no intentional misconduct was
clearly erroneous and ask that we dismiss their indictments with prejudice on that basis. We find, however, that the district court's decision in
that regard was essentially a decision as to the weight of evidence and
a credibility determination, and as such it is entitled to great deference
by this court. United States v. Dickerson, 166 F.3d 667, 676 n.6 (4th Cir.
1999) (citing United Stated v. Oregon State Med. Soc'y, 343 U.S. 326
(1952)). Not only did the court review the grand jury transcripts, it also
held a hearing at which it heard testimony from Agent McNair regarding,
among other things, the motivation behind his testimony and his belief
in the truth of his statements at the time. Given the numerous sources
from which Agent McNair's information came, the district court's determination that he "acted with the best of intentions" is supported by the
record. The findings of the district court with respect to the matter are
not clearly erroneous.
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prejudice. With that the defendants had all the relief to which they
might have been entitled.3
We are of opinion the district court took the correct course. In view
of the finding that the presentation of the objectionable portions of
McNair's testimony were inadvertent and that other portions of the
grand jury's testimony free from taint supported the indictment, deterrence would have been the only basis remaining for dismissal. In
Bank of Nova Scotia, the court stated the rule in such cases:
. . . deterrence is an inappropriate basis for reversal where
means more narrowly tailored to deter objectionable prosecutorial conduct are available. [internal quotations
removed]
487 U.S. at 255.
In this case the district court correctly chose a more narrowly tailored remedy and dismissed the indictment without prejudice. The
new indictment issued on April 3, 1996 was handed down by a grand
jury which considered only a transcript of witnesses' testimony before
the original grand jury, which transcript did not include McNair's testimony.
Thus, the indictment on which the defendants were tried was
entirely free of taint caused by the introduction of McNair's objectionable testimony before the original grand jury, and there could not
have been any prejudice to the defendants on that account. Again pursuant to Bank of Nova Scotia, we decline to invoke the supervisory
power of an appellate court to circumvent a harmless error inquiry.
487 U.S. at 254. We are of opinion that there was no error in the procedure adopted by the district court in this case. In the unlikely event
any error be found, it was harmless.
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3 Accord: United States v. Price, 857 F.2d 234, 236 (4th Cir. 1988);
United States v. Hayes, 775 F.2d 1279, 1283 (4th Cir. 1985).
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II.
Additionally, defendants argue, based on United States v.
Singleton, 144 F.3d 1343 (10th Cir. 1988), that their indictments
should have been dismissed with prejudice in light of the fact that
Gary Feurtado and Barrett received something "of value . . . because
of the testimony" they gave before the grand jury, in violation of 18
U.S.C. 201(c)(2), when the government entered into Barrett's plea
agreement and moved for sentence reductions in both those witnesses' cases. Defendants contend that the government itself committed a violation and that such prosecutorial misconduct warrants
dismissal of the indictment with prejudice. The en banc court in the
Tenth Circuit rejected the Singleton panel's interpretation of the statute which would have precluded the type of plea bargaining which is
institutionalized within our criminal justice system. United States v.
Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc). We reject this
argument as well.
III.
Lance Feurtado and Gerald Booker argue that violations of the
Speedy Trial Act, 18 U.S.C. 3161, et seq., require their release and
discharge from criminal liability on the indictment. The argument
goes that 3164(b) of the statute requires that a criminal trial commence not later than 90 days following the beginning of continuous
detention for the crime charged. In this case, Lance Feurtado was
arrested September 14, 1995 and Booker was arrested September 28,
1995. Their guilty pleas were agreed to on January 14, 1997, some 16
months later, thus, they contend they should be discharged. Not taken
account of, however, or only obliquely, is the fact that the original
indictment was dismissed without prejudice and they were reindicted
by a new grand jury as earlier discussed in this opinion. Added to this
was a superseding indictment after the reindictment. Also, there were
numerous delays and continuances, most of which were agreed upon,
some at the instance of the defendants. There were many motions
filed and disposed of, and we note the docket sheets indicate there
were initially 12 defendants indicted, scattered from coast to coast
and from New York to South Carolina. Most notably there is even
now no claim of prejudice under 3164(c) for not letting Lance
Feurtado and Booker to bail. Even assuming the periods of delay held
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by the district court to be excludable under the Speedy Trial Act were
erroneously arrived at, especially absent prejudice, we have held in
United States v. Howard, 590 F.2d 564, 569 (4th Cir.), cert. denied,
440 U.S. 976 (1979), that "in any event, the sanction for noncompliance . . . [with 3164] is release, not dismissal of the indictment." The argument of these defendants that Strunk v. United States,
412 U.S. 434 (1973), requires release for any violation of the Speedy
Trial Act is not well taken. Strunk was a decision for an acknowledged Speedy Trial violation under the Sixth Amendment, not a statutory violation of the Speedy Trial Act, which was not enacted until
1974. We decline to impose the penalty of dismissal on the United
States for such merely technical violations of the Speedy Trial Act,
assuming, not deciding, that they exist, especially when that statute
itself does not provide for dismissal of the indictment under
3164(c), rather for release from custody.
The defendants, Lance Feurtado and Booker, acknowledge that all
of the time between their arrests and their pleas of guilty was excludable under 3161(h)(1) except for certain defined periods they claim
as nonexcludable time, which we will consider separately.
A.
Lance Feurtado claims a total of 98 nonexcludable days as follows:
14 days between September 14, 1995, the date of his arrest, and September 27, 1995, his initial appearance in the District Court of South
Carolina4; 40 days between October 6, 1995, the date of his detention
hearing, and November 16, 1995, the date of a motion filed by
another defendant, Todd Feurtado. (In his brief, Lance Feurtado
acknowledges "there were various overlapping discovery motions
pending from October 5, 1995, until the execution of the first consent
order of continuance in Feurtado I on December 7, 1995"), Brief at.
56; and 44 days from March 27, 1996, the date of dismissal of the
first indictment until May 10, 1996, the date of Lance Feurtado's
motion for continuance. Only four of these are nonexcludable days,
however, as we demonstrate.
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4 Why this period is not 13 days is not explained.
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With respect to the claim of 14 nonexcludable days from September 14, 1995 until September 27, 1995, the statute involved,
3161(h)(1)(H), provides that time consumed in excess of 10 days
for transportation of a defendant from another district is presumed to
be unreasonable. The district court held that 4 days were nonexcludable and that 10 days were excludable. This is in compliance with the
statute and is as favorable a ruling for Lance Feurtado as might be
hoped for here. With respect to the period between October 6, 1995
and November 16, 1995, the defendant acknowledges that there were
various overlapping discovery motions pending during all of that
period. The fact that some of the motions were for discovery and were
filed by other defendants does not mean that the delay is nonexcludable time and we have so held in United States v. Jarrell, 147 F.3d
315, 316 (4th Cir. 1998) (other defendants), United States v. Sarno,
24 F.3d 618, 622 (4th Cir. 1994) (other defendants), United States v.
Velasquez, 802 F.2d 104, 105 (4th Cir. 1986) (all time between the
filing of a motion and the conclusion of the hearing on the motion),
and United States v. Tinsley, 800 F.2d 448, 449-450 (4th Cir. 1986)
(discovery and inspection and other motions).
For the period of 44 days between March 27, 1996 and May 10,
1996, between the dismissal of the first indictment and Lance Feurtado's motion for a continuance, as the report of the magistrate judge
found without refutation, there were motions pending under the first
indictment that carried over to the superseding indictment of April 3,
1996. In United States v. Riley, 991 F.2d 120 (4th Cir.), cert. denied,
510 U.S. 949 (1993), we held that a suppression motion carried over
to a retrial following a mistrial, and we think that case governs the situation here. Thus, we conclude that of the time claimed as nonexcludable by Lance Feurtado there are four days nonexcludable. Even if we
construe his brief as a request to dismiss the indictment under
3162(a)(2), and it is doubtful that we should, the record does not
show but four days of nonexcludable time for dismissal of the indictment under 3162(a)(2) rather than the 70 days required under
3161(c)(1).
We thus conclude as to Lance Feurtado there has been no violation
of the Speedy Trial Act of sufficient consequence to discharge him.
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B.
As to Booker, he claims nonexcludable time of 102 days. The first
is a period of 61 days between October 5, 1995 and December 7,
1995. He acknowledges that during this period of time there were
pending motions of codefendants. We hold that this time was not
excludable in his case for the reasons we have just expressed in Part
III A, just above, for Lance Feurtado.
The date of Booker's arrest is uncertain. He claims 37 days from
the time of his arrest to his first appearance in the district court. In his
brief, he does not state either the date of his arrest or the date of his
first appearance. The docket sheet, A. 25, shows his arrest was October 23, 1995. The magistrate judge's report has it as September 28,
1995. To give Booker the benefit of the doubt, we will use the September 28, 1995 date of arrest and use the magistrate judge's report
of November 3, 1995 for the date of his first appearance, which would
give him nonexcludable time there of 36 days, provided the time is
nonexcludable.5 Even if this 36 or 37 day period was nonexcludable
time, which we doubt, and which we do not have to decide, it is far
below the 70 day nonexcludable time required by 3161(c)(1) and
3162(a)(2). So the 70 day period of nonexcludable time has not run
and he is not entitled to be discharged.6
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5 The parties and the magistrate judge treat this period as 37 days.
6 The time in excess of ten days under 3161(h)(1)(H), 26 or 27 days,
would seem to have run in a time computation under 3164. Since
Booker is not entitled to relief under that section in any event, that is not
a question we have to decide, and, even if we had to decide it, the time
is less than the 90 day period required in 3164.
We emphasize also United States v. Palomba, 31 F.3d 1456 (9th Cir.
1994), under like facts as here, held that under 3161(c) the 70 day
period starts to run only when the defendant is brought before a judicial
officer in the district in which the matter is pending. Thus the 44 days
claimed as nonexcludable is in fact and law excludable from the 70 day
period, and alternately we so hold.
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IV.
All defendants further assert that the district court violated Fed. R.
Crim. P. 11(e)(3) and (4), by adding the minimum five-year period of
supervised release required by 21 U.S.C. 841(b)(1)(A) to the sentence agreed upon in their respective plea agreements. If the court
accepts a plea agreement, Fed. R. Crim. P. 11(e)(3) and (4) require
the court to inform the defendant that it will embody in the sentence
the disposition provided for in the plea agreement, or if it rejects the
agreement, the court must give the defendant the opportunity to withdraw the plea. The government concedes that the defendants were not
advised by the court that they faced a mandatory five-year term of
supervised release in addition to the sentence of imprisonment stipulated in the plea agreement and that the additional term of supervised
release results in a sentence that exceeds that which the record indicates the defendants understood they could receive as a result of their
guilty pleas. The government further concedes that, under United
States v. Good, 25 F.3d 218 (4th Cir. 1994), and United States v.
Thorn, 153 F.3d 130 (4th Cir. 1998), the failure to inform the defendants of this additional mandatory term is plain error and the error is
not harmless as it affects the substantial rights of the defendants.7
In accepting the plea agreements, the district court did inform each
defendant that in the event the government backed out of the plea
agreement or in the event that the court did not accept the plea agreement, the defendant would have the right to withdraw his plea. In
light of this, as well as the requirements of Fed. R. Crim. P. 11(e)(3)
and (4) not to mention the overtone of constitutional implications, we
remand this issue to the district court as to all defendants. On remand
the district court may, in its discretion, see Moore v. United States,
592 F.2d 753, 756 (4th Cir. 1979), accept the respective plea agree_________________________________________________________________
7 We note that the government did not concede this issue as to defendants Willie Glover and Gerald Booker in its opening brief because
Glover's and Booker's motions to join this issue (February 8, 1999) and
this court's grant of those motions on February 26, 1999 occurred after
the government had submitted its brief. However, the record supports
Glover's and Booker's assertion that they are entitled to the same relief
and the government did not dispute the issue as to Glover or Booker at
oral argument.
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VI.
We thus affirm the convictions of all of the defendants. We affirm
the sentence of Willie Glover so far as it takes issue with the attribution to him of 10 kilograms of cocaine for sentencing purposes. On
remand the district court, at its option, will either resentence each of
the defendants so that the total sentences imposed, including the five
year period of supervised release, will not exceed the sentence agreed
upon in their respective plea agreements, or, alternately, the district
court, in its discretion, may allow each defendant to withdraw his
guilty plea and plead again.
AFFIRMED IN PART AND REMANDED
WITH INSTRUCTIONS
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